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ELCDismissedNotice of motion dated 25th November 2015 in the plaint dated 25th November 2015 (Kisumu)· [2017] KEELC 2654 (KLR)

Consolata Pande & another v Ashish Bhupendera Patel & 4 others [2017] KEELC 2654 (KLR)

Environment and Land Court
14 June 2017
SKS.M. Kibunja
1,024 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court refused to stop the sale of Kisumu land because the family suing over it could not prove their claim on paper.

What this practically means

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Executive summary

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The Plaintiffs, suing as legal representatives of the estate of Abomo Olengo (also rendered Aboma Otengo/Atengo), moved the court by notice of motion dated 25th November 2015 seeking a temporary injunction against the 1st and 2nd Defendants from disposing of, subdividing, mortgaging, charging, selling, transferring or leasing land parcel Kisumu/Ojola/2103 pending determination of the suit. The application was brought under Order 40 Rules 1 and 2 and Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, supported by the Plaintiffs' affidavit. It was opposed by the 1st and 2nd Defendants through a replying affidavit sworn by the 2nd Defendant, and by the Land Registrar Kisumu and the Attorney General through a replying affidavit of George Orwaru Nyangweso. Counsel filed written submissions. The court framed two issues: whether a prima facie case with a probability of success was established, and costs. It held the Plaintiffs had authority to sue under a limited Grant Ad litem since the suit was filed within its 90-day lifetime. However, the register (green card) showed the 3rd Defendant ceased to be proprietor in December 2002 and that Silvanus Onyiego Nyawaga, not the 3rd Defendant, transferred the land to the 1st and 2nd Defendants in February 2014; the Plaintiffs had not joined Nyawaga. Their allegation that the 3rd Defendant transferred without a confirmed grant was uncorroborated hearsay. No prima facie case, irreparable damage or balance of convenience was shown. The application was dismissed with costs on 14th June 2017.

Key legal issues

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01

Whether the Plaintiffs had authority to sue for the estate

Holding

Yes - the suit was filed within the 90-day lifetime of the limited Grant Ad litem

Reasoning

The Grant Ad litem in Kisumu Succession Cause No.918 of 2015 was issued on 28th September 2015 and limited to 90 days. The plaint was filed on 30th November 2015, within that period, so the Plaintiffs had authority to commence the suit for the estate of the deceased.

p. 2
02

Whether the Plaintiffs established a prima facie case against the 1st and 2nd Defendants

Holding

No - the green card showed the 3rd Defendant was not the transferor to the 1st and 2nd Defendants

Reasoning

The register showed the 3rd Defendant became registered proprietor on 13th November 2002, then Silvanus Onyiego Nyawaga on 4th December 2002, who transferred to the 1st and 2nd Defendants on 28th February 2014. The Plaintiffs did not join Nyawaga, and the 3rd Defendant did not confirm their allegations, which the court treated as hearsay.

p. 2

Legal principles established

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  • An applicant for a temporary injunction must establish a prima facie case with a probability of success, irreparable damage and balance of convenience
  • A limited grant ad litem must be in force when the suit is commenced for the plaintiffs to have authority to sue for the estate

Court orders

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  1. 1.The notice of motion dated 25th November 2015 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1 and 2
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure ActSections 1A, 1B and 3A
Jurisdiction invoked
Order 40 Rules 1 and 2, Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Consolata Pande & another v Ashish Bhupendera Patel & 4 others [2017] KEELC 2654 (KLR)", Case Analysis (2017). Notice of motion dated 25th November 2015 in the plaint dated 25th November 2015 (Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2654/eng@2017-06-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.